29 Ala. 382 | Ala. | 1856
According to the common law, a plea of tender after suit bought was, as a plea, no bar in a court of law. But, as it was just that a defendant, who had not made a tender before action brought, should have an opportunity of satisfying the debt for which an action had been commenced, and of protecting himself from the costs which might accrue subsequent to the time when he availed himself of that opportunity, the practice of giving leave to bring money into court upon the common rule was introduced, for the sake of giving that opportunity and that protection. That rule was seldom granted, without requiring'the payment of all the costs which had accrued when it was applied for. Part of the rule is, that unless the plaintiff shall accept of the money brought into court, together with costs to the time of bringing it in, in full discharge of the action, the said money is to be paid to the plaintiff, and to be stricken out of the declaration; and upon the trial, the plaintiff shall not be permitted to give any evidence as to said money. If the plaintiff accepts the money as the full,amount due, the action is, of course, at an end; but he may deny that it is sufficient to satisfy his demand, and go on to trial. — 9 Bacon’s Abr. (edition of 1846), 321, 340,345; Murray v. Windley, 7 Iredell’s Rep. 201.
In the present case, the tender was made after action brought. There was no rule to bring the money into court. The money was not brought in, until about two years after the tender, nor until the day on which the tender was pleaded and the trial had. The only question to be tried was, whether, upon the undisputed facts presented, the defendant was exempted from liability for the costs which accrued after the tender. That question was “ submitted to the court,” and was correctly decided by the court against the defendant. Nothing then remained for the jury to try. But the charge of the court upon the question which had been submitted to it, and which had been correctly decided by it, although unnecessary and objectionable, could not possibly have injured the defendant, who is the appellant. That charge, therefore, does not entitle him to a reversal of the judgment. If he had paid all the costs which had accrued up to the time he paid the money ihto court, there would have been no controversy. Not having done that, and not having paid the money in
Judgment affirmed.
